'This chaos factor': Legal expert explains how Trump and his allies are undermining the incoming Biden administration

On Saturday November 7, the Associated Press and other major media outlets reported that Joe Biden achieved an insurmountable lead over President Donald Trump in the Pennsylvania vote count, making him president-elect of the United States. Regardless, Trump has refused to concede, vowing to fight Biden's victory in court to the bitter end. And legal expert Benjamin Wittes, in an article published on his Lawfare website on November 11, analyzes the impact that Trump's legal efforts and refusal to concede are likely to have or not have on the incoming administration.

"The president of the United States is trying to overturn the results of a national election he unambiguously lost with a combination of petulant whining, spiteful and flailing executive action, and magic," Wittes writes. "No, it's not ultimately going to work, at least not if working is defined as allowing President Trump to maintain power in the face of expressed voter will."

Wittes adds, however, that in some respects, Trump's refusal to accept the election results is effective for him.

"It is working better than I would have believed possible: in undermining confidence in American democratic processes, in damaging President-elect Joe Biden's ability to govern in the short term, and in raising questions in the minds of the faithful as to whether Trump's defeat was real," argues Wittes, who has often been featured as a legal analyst for CNN.

Wittes goes on to lament the fact that so many prominent Republicans are afraid to publicly acknowledge that Trump lost the election.

"The bigger problem than the president's refusal to concede the race is the toleration of that refusal by the overwhelming majority of congressional Republicans," Wittes observes. "Yes, a few (Republican) senators — Susan Collins, Lisa Murkowski, Mitt Romney and Ben Sasse — have congratulated Biden, and a few others have said that Biden should have access to transition resources and intelligence briefings. But the Republican leadership in both houses of Congress have played along with the president's obstinate refusal to face reality, pretending that there are still important questions about the integrity of the vote to litigate and resolve."

Trump, according to Wittes, is "using state power to frustrate an orderly transition of power" — and Trump loyalists like Secretary of State Mike Pompeo and General Services Administration Administrator Emily Murphy are helping him out. On November 10, Wittes notes, Pompeo said that there "will be a smooth transition to a second Trump Administration," adding that President-elect Biden still isn't receiving intelligence briefings.

"Sensible people," Wittes points out, have been "asking questions about coups and election thefts. And it's hard to be quite as dismissive of such talk as I would like to be and as such rhetoric normally warrants. The president, after all, is actively threatening not to respect the results of a clear electoral defeat."

Nonetheless, Wittes stresses that "it is exceedingly difficult to steal an election in the United States…. On December 14, when the Electoral College formally votes, they will thus get to cast their votes for president. There will inevitably be talk of the possibility of faithless electors, but it's not going to happen."

Yet even without actually stealing the election, Wittes laments, Republicans are using the "chaos factor" to undermine the incoming Biden Administration.

"This chaos factor is one of the reasons leadership is so important," Wittes explains. "And it's why failures of leadership, even when they seem to be relatively harmless posturing worth tolerating, are so dangerous."